Court of Appeal
Criminal Appeal No. 9 of 1980
16th July, 1980.
CLIFFORD INNISS J. A. (P.)
S. 43 (1) (d) of the Court of Appeal Ordinance,
1967, (No. 18 of 1967)

Application for Bail - S. 156(a) of the Criminal Code - Applicant is to serve a substantial portion of his sentence before the hearing of his appeal - Court on vacation - Exceptional circumstance in deciding whether to grant bail.

R U L I N G ON B A I L

This is an application for bail by the Appellant Luke Mariano, who on the 16th April, 1980, was convicted on two Counts of Stealing from Employer contrary to S. 156(a) of the Criminal Code and sentenced in respect of each conviction to three years imprisonment with hard labour, the sentences to run concurrently.

On applications of this kind, the principle which is followed by the Court is that it will not usually grant bail, and will only do so in exceptional circumstances. Exceptional circumstances mean circumstances which the Court considers exceptional and such as to take the case out of the rule that the Court does not usually grant bail. (See the Ruling dated 22nd February, 1977, on the Application for Bail in Roy Ruebin Zelaya v. Reg.); or, as it was put in Walton (reported in the Cr. Law Review for April, 1979., at p. 246, and cited in the Ruling dated 1st June, 1979, on the Application for Bail in Willword Bonner) such as will drive the Court to the conclusion that justice can only be done by the granting of bail.

On 22nd April, 1980, the Appellant gave Notice of Appeal; and on 26th May, 1980, Mr. Zuniga, Counsel on his behalf, filed a Notice stating the grounds of Appeal, which referred to alleged misdirection by the Trial Judge in his summing up to the Jury.

The Appellant's Appeal was in the List for hearing at the June Sessions of the Court of Appeal, which opened on 11th June, 1980; but before it could be heard the Sessions had to be terminated with the result that the Appellant's Appeal was adjourned to the next Sessions of the Court.

The Registrar has informed this Court that the opening day of the next Sessions has not yet been fixed by the substantive President, but that the next Sessions would normally he held sometime in October, or early in November, 1980.

In the result, the Appellant will have served approximately six months or a little more of his sentence before his Appeal can come on for hearing.

This circumstance is the main ground of the Application for bail. Indeed, apart from reference to his good character previous to the convictions now under appeal, and to the fact that during his Trial and from 10th February, 1979 the Appellant had been on bail without absconding, no other circumstances has been urged.

Mr. Zuniga, for the Appellant, pointed to the Ruling on Bail given by this Court (fully constituted) in Ramesh Bhojwani v. Reg. and dated 24th November 1978; and to the Ruling given by myself as single judge on the Application for Bail in Wilford Bonner v. Reg. and dated 1st June, 1979. He referred to the passage in the Ruling on the Bhojwani Application where the Court said :

"We are particularly influenced by the relationship between the sentence and the period of time that must elapse before the appeal can be determined", and submitted that the principle is the relationship of the sentence to the time which would have to be served before the hearing of the Appeal."

He went on to cite four cases in which bail had been granted and sought to strike a parallel between these and the instant Application by arguing that in each the amount of the sentence which would have to be served before the appeal could be heard was one?sixth, and that one?sixth was therefore to be regarded as a substantial portion of the sentence.

These cases were:?

As to this submission, I would say that the just three cases are not really comparable with the instant Application because in all of them there were compelling circumstances additional to the length of the interval between conviction and the hearing of the appeal. On the other hand support for Counsel's contention appears to exist in a case not cited by him, namely, Macdonald (1930) 21 Cr. App. R. 26 cited in my Ruling on the Application for Bail in Willword Bonner v. Reg. (supra). In Macdonald the applicant was convicted on July 12th of knowingly receiving stolen property and sentenced to 18 months imprisonment with hard labour. His appeal could not be heard until the end of the Long Vacation, so that approximately three months (or one sixth) of his sentence would have had to be served before his appeal could be heard. He was admitted to bail.

Mr. Elrington, for the Crown, opposed the granting of bail as a matter of principle, since the facts, he submitted, were only border?line. He said that this was clearly a case in which the period of imprisonment in relation to the term of the sentence was right on the margin of what would be regarded as a tolerable or permissible period of waiting.

He submitted that there was a relationship between the April Criminal Sessions of the Supreme Court and the June Sessions of the Court of Appeal. Having been convicted on 16th April, the Appellant was in the position that it was possible to process his record and have his Appeal in the list for the June Sessions of the Court of Appeal. Other persons convicted shortly before or shortly after the Appellant were not in such a happy position and their record did not find their way into the List for the June Sessions of the Court of Appeal. Those under sentence would have to wait until the October Sessions of the Court of Appeal unless they could show circumstances justifying the grant of bail. Applicant was not really in any worse a position than these.

It is difficult to see where this sort of argument leads since, surely, each case must be considered on its own merits if and when an application is made.

Mr. Elrington submitted that there was no comparable case in which the sentence had been a long one and bail had been granted; but there were cases in which the sentence had been a long one and bail had been refused.

He referred to the Application in Criminal Appeal No. 1/1971, Charles Eagan v. Reg. heard and determined on 26th February, 1971. The applicant had been convicted on 3rd February, 1971, of Aggravated Theft, Housebreaking and Receiving, for which he had been sentenced respectively to 3 years, 5 years, and 2 years. His appeal could not be heard before the next sitting of the Court of Appeal, which, as I understand it, was towards the end of May, so that unless he was bailed he would have had to serve something over three months of his sentences before his appeal could be heard. His application for bail was refused by the full Court.

Mr. Elrington also referred to the Ruling on Bail dated 22nd February, 1977, on the Application in Roy Rueben Zelaya. In that matter the applicant had been convicted on 20th January, 1977, of use of deadly means of harm and causing dangerous harm, for which he had been sentenced respectively to terms of two years and three years imprisonment to run concurrently. His appeal could not be heard before April of 1977; so that by then he would have served between two and three months of his sentence. His application for bail was refused.

Mr. Elrington submitted, as I understood him, that where the sentence is short as in the Bonner case and there is a substantial delay, the Court will exercise its power to grant bail, but as the Eagan case and the Zelaya case showed, where there is a delay but the sentence is long the Court will decline to exercise its power.

There was no suggestion of Mr. Elrington's part that the Appellant, if admitted to bail, would be unlikely to answer to it. On this matter he adopted a negative approach, not committing himself either way. He pointed out that when arrested, the Appellant had a lot of money on him. Appellant had also said that he was then intending to go to Guatemala but would have returned to Belize. Mr. Elrington conceded, however, that the Appellant had been on bail at the time of his Trial before the Supreme Court and had appeared punctually on all occasions. At that time, he said, the Appellant was on half?pay, so there would have been some incentive for him to remain in this Country.

I pause here to refer to a passage which occurs in my Ruling on the Willword Bonner Application for bail (supra). It reads as follows:?

"It seems to me to emerge from the relevant authorities that where an applicant for bail has previously been of good character and has been sentenced to a comparatively short term of imprisonment and where an interval must elapse before his appeal can be heard which is so long that the applicant will have served a substantial portion of his imprisonment before the hearing of his appeal, these are circumstances which the, Court will regard as special and such as to justifying the granting of bail."

On this passage I wish to make two observations. The first is that the words "comparatively short" were used advisedly, for my review of the authorities had included Macdonald (1930) 21 Cr. App. R. 26, in which the sentence had been one of 18 months. That is not really, in my view, a short sentence.

Secondly, the passage cited contains no reference to grounds of appeal. In this regard, although it may be consistent with the reports of the cases of Turner and King, and Macdonald, the passage, as I see it, on further reflection, states the principle somewhat too widely. It seems to me to go without saying that for an appellant to qualify for bail, his grounds of appeal must, at least on the face of them, be of a substantial nature; for injustice would only result to him if, having served a substantial portion of his sentence before his appeal could be heard, he then had his appeal allowed. That could hardly happen if his ground of appeal were frivolous or plainly unsubstantial.

On Bonner's application it had in fact been argued that the grounds of appeal were substantial.

In the instant case, the Application does not refer to the grounds of appeal and no reference was made to them in argument. Nevertheless, they are on the Record and I have looked at them. They appear to me to be arguable, although, like the Court in Bhojwani, on the material before me I am not really in a position to anticipate their chances of success.

The question for me is whether I can apply in the case of a long sentence the principle which I found to have been applied in the case of short or comparatively short ones, and to which I have adverted. Logically, there would seem to be no good reason why I should not do so; and I do not think that the Ruling in Eagan and Zelaya preclude such action. Indeed, both appear to me consistent with the application of the principle under discussions, for in neither case could it be said that the applicant would have served a substantial portion of his sentence before his appeal could he heard. On the positive side, no precedent exactly on all fours has been cited. This is perhaps not surprising, for, as Mr. Zuniga pertinently remarked, the longer the sentence, the smaller would be the chance that the applicant would have served a substantial portion of it before his appeal could be heard. I have, however, found two authorities which are of some assistance. One is Newberry and Elman 23 Cr. App. R. 68. Although not on all four with the instant Application, it demonstrated a willingness on the part of the Court to grant bail in a case in which the sentence was as long as three years. The other case is Macdonald (supra) in which as I have already pointed out, the Court granted bail, in a case in which the sentence ? 18 months was not really a short one. It seems to me fair and just that the same principle should be applied regardless of the length of the sentence; but I would not wish to be taken as excluding other exceptional circumstances.

On that basis I turned again to the instant Application. What have we here?

Previous to the convictions now under appeal the Appellant was of good character. The grounds of his Appeal appear to me to be arguable, and before it can be heard, he will have served approximately six months or a little more of his three?year sentence. I accept that this is a substantial portion of his sentence. Further, I bear in mind that there is no positive suggestion that, if admitted to bail, the Appellant is unlikely to answer to it.

In my opinion, the circumstances are exceptional and such as to take the case out of the rule that the Court does not usually grant bail.

The Appellant, Luke Mariano, will be admitted to bail pending the determination of his Appeal on his own recognisance in the sum of $3,000.00, together with two sureties, satisfactory to the Registrar, in the sum of $1,500.00 each. Such security to be taken before the Registrar. The Appellant will also surrender his Passport to the Police.

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